17-003264EXE Amelia Hollis vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Tuesday, October 3, 2017.

Summary: Petitioner did not prove her rehabilitation by clear and convincing evidence. The Agency's intended denial of Petitioner's request for exemption from disqualification is not an abuse of discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMELIA HOLLIS,

Petitioner,

vs. Case No. 17 - 3264EXE

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hear ing was held in this case on

August 15, 2017, via video teleconference at sites in Tallahassee

and Jacksonville, Florida, before Suzanne Van Wyk, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner : Amelia Hollis, pro se

Apartment 1415

3737 Saint Johns Bluff Road South

Jacksonville, Florida 32224

For Respondent: Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether the Agency for Pers ons with DisabilitiesÓ (Agency )

intended decision to deny PetitionerÓs application for exemption

from disqualification for employment is an abuse of the AgencyÓs

discretion.

PRELIMINARY STATEME NT

By letter dated May 2, 2017, the Agency issued its notice of

agency action by which it informed Petitioner that her request

for exemption from disqualification was denied. As a result,

Petitioner was deemed ineligible to Ðbe employed, contract with,

be licensed, or otherwise authorized toÑ serve Agency clients.

In the letter, the Agency reported its determination that

Petitioner had Ðnot submitted clear and convincing evidence of

[her] rehabilitation.Ñ

Petitioner filed her Request for Administrative H earing with

the Agency on May 22, 2017, which request was referred to the

Division of Administrative Hearings on June 6, 2017. The case

was initially assigned to Administrat ive Law Judge R. Bruce

McKibben and scheduled for final hearing on June 19, 2017. The

case was transferred to the undersigned on June 15, 2017, and the

final hearing commenced as scheduled.

At the final hearing, Petitioner testified on her own behalf

but offered no witnesses and introduced Exhibit P1 in evidence.

Respondent presente d the testimony of Leslie Richards, the

AgencyÓs Northeast Regional Operations Manager, and Petitioner.

RespondentÓs Exhibits R1 through R5 were admitted in evidence.

The undersigned granted the AgencyÓs request for official

recognition of chapter 435 an d section 393.0655, Florida

Statutes.

The proceedings were recorded, but the parties did not order

a transcript thereof. Respondent timely filed a Proposed

Recommended Order, which has been considered in preparing this

Recommended Order. Petitioner did not make any post - hearing

filing s .

All references herein to the Florida Statutes are to the

2017 version.

FINDING S OF FACT

1. Petitioner is a 68 - year - old female residing in

Jacksonville, Florida. PetitionerÓs most recent employment is

with Linda L. Curt is Health Care Agency (Curtis Agency), where

she Ðsits with patients,Ñ and provides entertainment and meals

for patients.

2. Respondent is the state agency responsible for licensing

and regulating the employment of persons in positions of special

trust. Specifically, the AgencyÓs mission includes serving and

protecting vulnerable populations, including children and adults

with developmental disabilities.

3. In connection with her employment at Curtis Agency,

Petitioner underwent background screening on J uly 26, 2017, and

was deemed automatically disqualified from employment based on a

past offense. See § 435.06, Fla. Stat. Petitioner applied to

the Agency for an exemption from disqualification, pursuant to

section 435.07, which the Agency denied and whi ch forms the basis

of the instant Petition for Administrative Hearing.

Disqualifying Offense

4. On September 25, 1999, Petitioner was arrested and

charged with misdemeanor battery for an incident at her home

involving her 18 - year - old cousin, Shanique Barn er, whom she was

raising, along with the cousinÓs baby.

5. The altercation began when Petitioner approached

Ms. Barner about failing to keep her bedroom clean, an issue

about which Petitioner had spoken to Ms. Barner repeatedly. The

confrontation became physical and both parties began punching and

hitting each other. When the fight ended, Petitioner took

Ms. Barner to the hospital for a tetanus shot and treatment for a

bite or bites inflicted by Petitioner during the altercation.

6. An off - duty officer at the hospital was informed of the

domestic violence incident and the arresting officer was

dispatched to PetitionerÓs residence.

7. At PetitionerÓs home, the arresting officer observed

Ms. Barner with a swollen left eye and two bite marks on her left

ar m. After taking both partiesÓ statements, the officer arrested

Petitioner and took her to a detention facility for booking.

8. Petitioner pled nolo contendere to the charge of

domestic battery and adjudication was withheld. On October 4,

1999, Petitione r was sentenced to four monthsÓ probation and

ordered to pay court costs of $104. Terms of PetitionerÓs

probation included no contact with Ms. Barner, completion of an

anger control program, and payment of the costs of supervision.

9. PetitionerÓs probat ion was early - terminated on

November 2, 1999, at which time Petitioner had completed the

anger management program, paid her fine and court costs in full,

and was current in the monthly cost of supervision.

10. Petitioner was 50 years old at the time of th e

disqualifying offense, and Ms. Barner was 18. By PetitionerÓs

account, Ms. Barner was a rebellious and troubled teenager, who

had become pregnant at age 17 despite PetitionerÓs attempts to

persuade Ms. Barner to begin using birth control at age 15.

Subs equent Non - Disqualifying Offense

11. Petitioner had no further involvement with law

enforcement until April 8, 2008, almost nine years later, when

she was arrested and charged with aggravated battery with a

deadly weapon.

12. The details of the inciden t are unclear and disputed.

The record supports the following findings: For a month prior to

the incident, Petitioner had allowed a male friend, Mr. Jones, to

temporarily live at her home. Mr. Jones was ill, had lost his

employment, and had applied for social security disability, but

had not received payments in time to pay his rent. Mr. Jones had

a Ðroommate,Ñ Ms. Green, who was identified only as Mr. JonesÓ

girlfriendÓs dau ghter. Ms. Green also moved in to PetitionerÓs

home, temporarily, at the reques t of the girlÓs mother.

13. Apparently, Ms. Green, like Ms. Barner, was not much of

a housekeeper. Despite ass urances from Mr. Jones that Ms. Green

would Ðclean behind herself,Ñ Ms. Green frequently left dirty

dishes in the sink, with which Petitioner w as met upon her return

from work.

14. On the date of the incident, Petitioner returned from a

day at work to find dirty dishes in her sink, left there by an

unwelcome, and apparently ungracious, guest whom Petitioner, no

doubt, expected to be a short - ter m guest.

15. Petitioner informed Mr. Jones that Ms. Green would have

to leave. Ms. Green began removing her belongings, but not at a

pace Petitioner found very efficient, so Petitioner ÐassistedÑ in

removal of Ms. GreenÓs belongings. Ms. Green objected , telling

Petitioner not to touch her belongings. Petitioner responded by

informing Ms. Green she could not re - enter PetitionerÓs home to

remove the rest of her b elongings. Petitioner told Mr. Jones to

remove the remainder of Ms. GreenÓs belongings.

16. Petitioner positioned herself to block Ms. GreenÓs

entry to PetitionerÓs home. When Ms. Green attempted to enter

PetitionerÓs home, a physical altercation ensued. The

altercation was broken up by Mr. Jones and Ms. Barner , 1 / but

proved only a brief inte rlude in the fighting. A second physical

altercation ensued but the evidence conflicted as to which party

initiated the fight, and whether either party was armed with a

weapon of some sort.

17. Ms. Green emerged from this altercation with a deep cut

ab ove her left eye.

18. Following Ms. GreenÓs injury, Petitioner left the scene

in her vehicle.

19. An officer who had been dispatched to the scene

observed PetitionerÓs vehicle on his way to the scene, conducted

a traffic stop, and transported Petitio ner back to the scene.

After the investigation, Petitioner was arrested and transported

to a detention facility for booking.

20. The State AttorneyÓs office declined to prosecute

Petitioner and the charge against Petitioner was dropped.

Educational and Employment History

21. Petitioner maintained consistent employment both prior

and subsequent to the 2008 arrest.

22. Between April 2004 and March 2007, Petitioner was

employed as a shop foreman and an office manager for Air

Distributors Inc., a metal an d fiberglass fabricator.

23. Petitioner was a part - time cashier at WalMart from

March 2007 to November 2011.

24. Petitioner was employed with River Region Human

Services (River Region) from April 2009 through June 2014. River

Region is a residential re habilitation facility providing

methadone maintenance treatment to recovering addicts. At River

Region, Petitioner served as a Monitor Technician, observing

client activities and medication administration, filing behavior

and incident reports, conducting perimeter checks, and

transporting clients to off - site services.

25. The record does not support a finding of the exact date

on which PetitionerÓs subsequent employment with Curtis Agency

commenced .

26. In connection with PetitionerÓs employment by Riv er

Region, Petitioner received an exemption from disqualification

from the Department of Children and Families.

27. While employed with River Region, Petitioner completed

a number of trainings sponsored by that agency, including Non -

Violent Practices in 2013, as well as HIV/AIDS Parts I and II,

HIPAA, Clinical Documentation, and Security Awareness in 2014.

Subsequent Personal History

28. The record was devoid of any subsequent history on

Petitioner. It is unknown whether Petitioner lives alone or wit h

roommates of any sort.

PetitionerÓs Exemption Request

29. In her application for exemption, Petitioner provided a

lengthy account of both incidents. Notably, Petitioner prefaced

her explanation as follows: ÐTo start I want to relate both

incidents occurred because I cared about others. I tried to

deaden this concern for others, but it just wouldnÓt happen.Ñ

30. While there is s ome credibility in associating

PetitionerÓs actions in the first incident with a concern for her

cousin, whom she was r aising the record does not support a

finding that the inci dent between Petitioner and Ms. Green, whom

she was removing from her home for being untidy, is at all

related to a concern for others.

31. In her lengthy explanation of both incidents,

Petitioner blamed the victim. With respect to her cousin,

Petitioner explained that her cousin hit her first. With respect

to Ms. Green, Petitioner explained that the victim came at her

first with Ðsomething in her hand,Ñ which Petitioner Ðimmediately

knocked out and caught.Ñ Petitioner wrote:

It was an unopened small red object. ThatÓs

when I recognized it was a small box cutter.

As she kept coming I push [sic] it and cut

her across her eyebrow.

32. PetitionerÓs account is troubling in many respects.

First, if Petitioner recognized the object as a box cutter, she

had time to drop the weapon, rather than use it against the

victim, whether in self - defense or otherwise.

33. Second, PetitionerÓs account of the incident differs

significantly from the accounts g iven by both PetitionerÓs cousin

and Mr. Jones to the officer at the scene. Both witnesses

told the officer that, after the initial altercation between

Petitioner and Ms. Green, Petitioner retrieved a scraper from her

car, which she carried with her to he r perch outside the door

blocking Ms. GreenÓs reentry to her home. 2 /

34. If the witnessesÓ accounts are accurate, Petitioner was

untruthful on her application, and attempted to shift blame to

the victim, when in actuality Petitioner was the party who

int entionally armed herself for an anticipated second altercation

with Ms. Green.

35. Petitioner made no attempt to explain the discrepancy

between her version of the 2008 incident and the version

recounted in the police report.

36. The lack of explanation is notable because Petitioner

went out of her way to contradict other aspects of the police

reports on both incidents. For example, while the police report

noted Ms. Green suffered wounds on her chest, nose, and above her

left eye, Petitioner insisted th e 2008 report was incorrect and

she cut Ms. Green only above the eye. As to the 1999 incident,

the police report noted Ms. Bar ner had a swollen left eye and two

bite marks on her left arm. Petitioner insisted the report was

wro ng, arguing that she bit Ms . Bar ner on the chest and not the

arm.

37. The remainder of PetitionerÓs application is bereft of

detail. In response to the question regarding the degree of harm

to the victims or property, Petitioner noted only ÐBite mark,Ñ

and Ðlaceration over eyebrow .Ñ PetitionerÓs demeanor at hearing

evidenced a complete lack of understanding of the seriousness of

her actions against Ms. Green. Assuming PetitionerÓs version of

the events is accurate, Petitioner could have permanently blinded

Ms. Green by intentiona lly striking her in the face with a box

cutter.

38. Regarding whether Petitioner had stressors in her life

at the time of the disqualifying offense, Petitioner responded

ÐNone.Ñ That response is contrary to PetitionerÓs detailed

description of the 1999 i ncident, which evidences significant

stress between her teenage cousin, who was rebellious in many

respects, including refusing to pick up after herself, not to

mention bringing into the household an unexpected mouth to feed.

39. With regard to current st ressors and support system,

Petitioner responded that she had no stress in her life and that

prayer is her support system. She described her current living

arrangements as a Ð2 bedroom, 2 bath apartment,Ñ and that she has

maintained her own household sinc e she was 17 years of age.

40. Petitioner failed to grasp the importance of

distinguishing her current life circumstances and living

arrangements from those at the time of the disqualifying offense

and subsequent non - disqualifying offense. Without any

di stinguishing circumstances, the Agency is justified in

questioning whether PetitionerÓs circumstances are more stable.

41. Petitioner stated that she had never received any

counseling for any reason, and that she had never used or abused

drugs or alcohol.

42. PetitionerÓs response to the question regarding whether

she feels remorse and accepts responsibility for her actions

reads as follows:

Regret was immediately felt during incidents.

We are responsible for our actions so to keep

this always in mind ta ke on fruitage of GodÓs

spirit faith, goodness, kindness, love,

longsuffering, joy, peace, mildness and self -

control .

43. PetitionerÓs response is telling -- it uses passive

language and avoids the first person. Petitioner did not state,

nor did she tes tify, that she regretted her actions, or that she

was responsible for the harm caused. Both her written account

and her live testimony evidence her intent to shift blame to the

victims and acknowledge responsibility only in the broadest

sense.

Personal R eferences

44. Petitioner included two reference letters in support of

her application: one from Ms. Barner and one from someone named

Trinette Simmons.

45. In Ms. BarnerÓs letter, she refers to Petitioner as her

mom and explains that Petitioner cared for her from two weeks of

age until five years of age, that she came to live with

Petitioner again at age 13, and that she has Ðperiodically

resided at [PetitionerÓs] residence for some years.Ñ Ms. Barner

states that Petitioner encouraged her and helped h er graduate

from school after becoming pregnant at age 17, and that love has

always been in her momÓs heart.

46. Petitioner did not explain her relationship to

Ms. Simmons. The letter from Ms. Simmons states that she has

known Petitioner since 2002, tha t Petitioner is capable of

handling any situation Ðwith thoughtfulness and maturity,Ñ and

that Petitioner is Ða team player, as well as a team leader, who

can adjust to changes within any environment.Ñ

47. The references are from persons who knew her whe n the

2008 incident occurred, but neither letter addresses the incident

or explains that PetitionerÓs behavior at that time was

uncharacteristic, or that it has changed significantly since that

incident. Moreover, neither of the letters is from an employe r

or other authority figure who has observed Petitioner interact

with River Region clients or Curtis Agency patients.

48. The Agency is charged with protecting the most

vulnerable populations in Florida -- children and adults with

developmental disabilities . Some members of this population are

uncommunicative, can be hostile, and act out. The Agency must be

confident that any applicant seeking to work directly with these

clients has demonstrated self - control and maturity to handle

difficult, and often stre ssful, interactions with the clients.

49. Both PetitionerÓs disqualifying, and subsequent non -

disqualifying, offense evidence PetitionerÓs lack of self - control

and good judgment when faced with stressful situations involving

individuals who are defiant an d refuse to take a course of action

requested by Petitioner. Neither of PetitionerÓs personal

references document PetitionerÓs ability to control herself and

her reactions when faced with similar difficulties more recently.

PetitionerÓs account of the in cidents shifts the blame to the

victims and fails to demonstrate true remorse or responsibility

for her actions, the harm she inflicted, and the potential for

more serious harm based on her choices at the time of the

incidents.

50. While Petitioner seems to truly interested in

continuing to help vulnerable citizens, even in a volunteer

capacity as she nears retirement, she did not present evidence

sufficient to demonstrate her rehabilitation.

CONCLUSIONS OF LAW

51. The Division has jurisdiction over the s ubject matter

of, and the parties to, this proceeding pursuant to sections

120.569 and 120.57(1), Florida Statutes.

52. Section 435.04, Florida Statutes, provides, in

pertinent part, that:

(1)(a) All employees required by law to be

screened pursuant to t his section must

undergo security background investigations as

a condition of employment and continued

employment which includes, but need not be

limited to, fingerprinting for statewide

criminal history records checks through the

Department of Law Enforce ment, and national

criminal history records checks through the

Federal Bureau of Investigation, and may

include local criminal records checks through

local law enforcement agencies.

* * *

(3) The security background investigations

under this section mu st ensure that no person

subject to this section has been found guilty

of, regardless of adjudication, or entered a

plea of nolo contendere or guilty to, any

offense that constitutes domestic violence as

defined in s. 741.28, whether such act was

committed in this state or another

jurisdiction.

53. Section 741.28, Florida Statutes, defines Ðdomestic

violenceÑ to include battery resulting in physical injury of one

family member by another family member. § 741.28(2), Fla. Stat.

54. PetitionerÓs plea of nolo contendere to battery against

her cousin constitutes a disqualifying offense pursuant to

section 435.04.

55. Section 435.07 establishes a process by which persons

with criminal offenses in their backgrounds, that would

disqualify them from acting in a position of special trust

working with children or vulnerable adults, may seek an exemption

from disqualification. That section provides:

435.07 Exemptions from disqualification. --

Unless otherwise provided by law, the

provisions of this section shall apply to

exemptions from disqualification for

disqualifying offenses revealed pursuant to

background screenings required under this

chapter, regardless of whether those

disqualifying offenses are listed in this

chapter or other laws.

(1)(a) The head of t he appropriate agency

may grant to any employee otherwise

disqualified from employment an exemption

from disqualification for:

* * *

2. Misdemeanors prohibited under any of the

statutes cited in this chapter . . . for

which the applicant has completed o r been

lawfully released from confinement,

supervision, or nonmonetary condition imposed

by the court[.]

* * *

(3)(a) In ord er for the head of an agency

to grant an exemption to any employee, the

employee must demonstrate by clear and

convincing evidenc e that the employee should

not be disqualified from employment.

Employees seeking an exemption have the

burden of setting forth clear and convincing

evidence of rehabilitation, including, but

not limited to, the circumstances surrounding

the criminal inci dent for which an exemption

is sought, the time period that has elapsed

since the incident, the nature of the harm

caused to the victim, and the history of the

employee since the incident, or any other

evidence or circumstances indicating that the

employee will not present a danger if

employment or continued employment is

allowed.

* * *

(c) The decision of the head of an agency

regarding an exemption may be contested

through the hearing procedures set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agencyÓs intended decision is an abuse of

discretion.

56. An exemption from a statute enacted to protect the

public welfare is strictly construed against the person claiming

the exemption. Heburn v. Dep't of Chi ld. & Fams. , 772 So. 2d

561 (Fla. 1st DCA 2000).

57. The abuse of discretion standard of review set forth in

section 435.07(3)(c) has been described as follows:

If reasonable men could differ as to the

propriety of the action taken by the trial

court, t hen the action is not unreasonable

and there can be no finding of an abuse of

discretion. The discretionary ruling of the

trial judge should be disturbed only when his

decision fails to satisfy this test of

reasonableness.

* * *

The discretio nary powe r that is exercised

by a trial judge is not, however, without

limitation . . . . [T]he trial courts'

discretionary power was never intended to be

exercised in accordance with whim or caprice

of the judge nor in an inconsistent manner.

Canakaris v. Canaka ris , 382 So. 2d 1197, 1203 (Fla. 1980); Kareff

v. Kareff , 943 So. 2d 890, 893 (Fla. 4th DCA 2006)(holding that,

pursuant to the abuse of discretion standard, the test is

Ðwhether any reasonable personÑ could take the position under

review).

58. The Agenc y has a heightened interest in ensuring that

the vulnerable population being protected by chapter 393, i.e.,

developmentally disabled children and adults, is not abused,

neglected, or exploited. In light of that mission, the

Legislature has imposed a heav y burden on those seeking approval

to serve this vulnerable population when they have disqualifying

offenses in their past.

59. Petitioner did not provide enough evidence to prove her

rehabilitation clearly and convincingly. Given the dearth of

evidence , the undersigned concludes that the AgencyÓs intended

denial of PetitionerÓs requested exemption does not constitute an

abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final or der be entered denying

PetitionerÓs request for an exemption from disqualification.

DONE AND ENTERED this 3rd day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of October, 2017 .

ENDNOTE S

1/ The record does not support a finding whether Ms. Barner was

residing with Petitioner at the time, or how she otherwise came

to be a witness to the second incident .

2 / Neither a box cutter nor a scraper was retrieved from either

the scene or from PetitionerÓs car.

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities

Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Ameila Hollis

Apartment 1415

3737 Saint Johns Bluff Road S outh

Jacksonville, Florida 32224

Jada Williams, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 335E

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.